Lombard v. Martin , 39 Miss. 147 ( 1860 )

Handy, J.,

delivered the opinion of the court:

This action was brought to recover upon an account alleged to be due tbe plaintiff by tbe defendant for goods and merchandise sold and delivered.

It appears from the evidence that the goods were obtained from the plaintiff by one Cox, under the following circumstances, as stated by the plaintiff in his own testimony before the jury : Cox had been purchasing goods at the plaintiff’s store, for which he was charged on his books, and the plaintiff determined to let him have no more goods until he could see the defendant. He called on defendant, and told him that Cox was making an account with him, and that he did not wish to let it go any further unless he knew more about him; and defendant told him that Cox was getting three hundred dollars a year and his board, and “ to let him have on,” and he did so to the amount of the balance of the account stated, part of it being for goods previously sold to Cox. These goods were all charged to Cox on the plaintiff’s books. He stated that from the defendant’s words used in the conversation, he considered defendant as surety for Cox, and he rather thought that he marked with a pencil in the journal that defendant was surety; that the credit, so far as appeared on the books, was given to Cox alone; that he did not understand the technical difference between principal and surety in such case, or guarantor or guarantee; and that he should not have sold the goods to Cox, if Lombard had not become, as he understood it, responsible for them or surety for Cox; that Cox had left without paying the account, and that he had taken no steps to make him pay it. Two other witnesses prove the language used by the defendant, as testified to by the plaintiff. No other circumstances were proved tending to create a liability on the part of the defendant for the goods sold.

Upon this evidence the court instructed the jury, at the instance of the plaintiff, that if they believed from the evidence that Martin sold the goods to Cox upon the faith of Lombard, although Lombard’s name was not on his books, they should find for the plaintiff for all such goods as were sold to Cox by Martin after Lombard told Martin to let him have them, &c.; and this instruction is insisted, on the part of the plaintiff in error, to be erroneous.

We think that the evidence clearly did not justify this instruction, and that it was calculated to mislead the jury.

In the first place, the declaration of the defendant was clearly not sufficient to create.a liability upon him. It was made upon the application of the plaintiff, and, as stated by him, it had the effect of mere advice, or the expression of an opinion, that the plaintiff could safely let Cox have further goods. The words employed, under the circumstances, do not of themselves import an assumpsit; and no motive of interest or obligation is shown on the part of the defendant, tending to show that he was desirous of obtaining the credit for Cox. The fact that the plaintiff considered, from the conversation which he sought, that the defendant was liable, either originally or secondarily, for the goods, can have no effect upon the liability of the defendant. The evidence was insufficient to warrant the jury in coming to the conclusion that the goods were sold on the faith of the defendant, in the sense that would create a liability upon the defendant as original debtor for the goods ; and this is very clear from the fact that, besides the insufficiency of the words used to create such liability, the goods were charged on the plaintiff’s books to Cox, and the plaintiff shows that he regarded the defendant as only bound as surety.

2. But the instruction is erroneous with reference to the attitude which the plaintiff himself clearly shows that he regarded the defendant as occupying, which is that of surety; for if he stood in that relation to the contract, he was not bound unless he had become so by note or memorandum in writing, of the existence of which there is no pretence. Yet, under this instructionj the jury might have believed that he was surety, and so that the goods were “ sold upon his faith,” to Cox — the faith that he would pay for them, if Gox did not; and, believing that he was liable under such circumstances, they might have found for the plaintiff.

The judgment is reversed, and the cause remanded for a new trial.